The moral case for open borders is universal. Most of the practical arguments can also be made in a country-independent fashion. If our case for open borders stands, it applies to all countries, not just the US. However, when arguing for open borders against restrictionists who use American documents for the purpose of arguing for restrictions in the United States, their arguments must be met, inherently, in an US context. These documents can be mistaken in their moral prescriptions and thus talking about them should not be considered as a definitive case for or against open borders. But what this discussion does do is help shed light on the context and history of immigration debates. In so far as an individual believes these documents to hold moral truths, a discussion of what they truly argue for is appropriate. If American history and legal theory are not your cup of tea you may want to just skip this post. Otherwise, let’s have it!
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The key being those five words. So does the preamble, and perhaps the Constitution in general, support a citizenist philosophy and allow anti-immigration policies? Fellow blogger Nathan Smith has touched on this issue before. I intend to tackle the issue from a somewhat different angle, specifically whether the Constitution, and indeed other founding documents of this country, justify a citizenist restriction of immigration. But enough prologue, let’s dive into this question.
The Constitution was set up so as to try to compel the government to follow the will of the people within certain limitations. Thus one might legitimately argue that a limited citizenism is somewhat evident within the document, though of a limited sort that also takes into account individual rights. Other portions of the Constitution strongly suggest that individual rights do no stop with American citizens. Take for example the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This amendment’s terminology would indicate that this right is not restricted to citizens or else the Constitution would say “citizen” as it does elsewhere (see page 370). So the Constitution does provide that non-citizens have rights that must be respected by the government. But does this include the right to migrate? In the powers granted to Congress there is only mention of the obligation to establish a “uniform Rule of Naturalization.” This is not, and was not seen at the time, as debates over naturalization rules in the 1790s show, as the same as establishing a rule on who can live in this country. Yet, in the very next section there is this statement:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The fact that there was a limitation on Congress would seem to indicate that after that twenty years Congress does have a right to limit migration. However, there are other ways to interpret the constitution. Lysander Spooner, a nineteenth century abolitionist and legal theorist offers this rule for interpreting the Constitution:
Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.